Demographics: the Winning Numbers

All Hail Nate Silver![1] His statistics-based political polling analysis, published at the New York Times’ FiveThirtyEight blog correctly predicted the results of presidential voting in all 50 states.

Think about that. In an election that almost every mainstream media outlet consistently referred to as “too close to call,” Silver, after Labor Day, never once had Obama’s chances of winning drop below 61.1%. On Monday of last week, Silver had Obama’s likelihood of winning at 90.9%. That afternoon, he flipped Florida from “leaning Romney” to “leaning Obama,” giving Obama a 50.3% chance of winning. When Florida was finally called for Obama, Silver achieved perfection, calling all 50 states correctly. This was four years after going 49 for 50, when he was incorrect only on Indiana, which went to Obama by 1/10th of a percentage point.

So, in politics, we may have finally decided to stop listening to pundits who rely on “gut feelings,” or campaign flacks, or national polls. Perhaps now everyone will pay attention to Silver or some of the other statistics/analytics experts who will no doubt follow in his wake. It seems clear that the campaign that doesn’t listen will lose.

Does this have anything to do with lawyering? Yes.

Numbers don’t kill cases; people do

Unless you are a hard-care legal formalist who believes that there’s a wall between law and politics[2], you probably already apply some kind of demographic statistics or analytics to your work—and demographic data is inherently political, because it measures traits that affect political and economic behavior. Determining the approximate value of a personal injury case is one example. In my work negotiating contracts, I spend a fair amount of time thinking about worst-case scenarios and how they relate to damages, remedies, indemnification, liability limits, and insurance. It’s all legal analysis that winds up being about numbers.

But what about in other areas of law?

I strongly suspect that Silver’s magic algorithm includes not only a lot of demographic data, but also includes his analysis of what that data means. For example, in order to hit the ball out of the park as he did, he probably made a number of very astute predictions about how certain ethnic groups’ votes would break down. For example, Latinos voted for Obama by a nearly 3 to 1 margin. I’m guessing Silver predicted that going in, not just by studying demographic data but by using it to develop a “most-likely” narrative that helped him set his odds of victory in each state. There’s a reason marketers study demographics so relentlessly: the numbers, if gathered with care, don’t lie. Put your client’s ad money to work in front of the right audience, and you’ll get positive results.

A jury of whose peers?

And that leads us to the great unknown of lawyering: trial. You can’t run ads before trial to improve your client’s chances, but you’d be foolish not to do some demographic analysis of your own.

Let’s say you do criminal defense work, and have an African-American client who’s charged with felony assault after a fight breaks out in the street outside a nightclub. He does not agree with the facts as the prosecution asserts them, and wants a trial. He’s confident that a jury of his peers will acquit him.

Before you agree, you would be foolish to not find out what sort of jury he’s likely to get. Many judicial districts use driver licensure or voter registration lists, or both, to find jurors that reside in the district. That sounds fine on its face, but the fact is that when I worked in St. Paul, that jury-summoning process did not lead to juries that reflected the diversity in the community.[3] Most of the juries I saw were mostly, or all, white.

So if your client expects to have at least some of the jurors be people with demographics similar to his (in other words, people he thinks of as his peers), he is likely to be disappointed. And while it’s impossible to say whether a particular all-white suburban jury will be less sympathetic to his version of events than one that includes urban African-Americans, there’s no doubt that this is a statistically-measurable fact that your client (and you, in my opinion) need to carefully consider. Frankly, I don’t see much difference between that sort of analysis and the analysis that Mitt Romney’s advisors should have used when crafting Romney’s attempt to appeal to Latino voters. And if your client does decides to go to trial, you will want to craft your narrative to some degee depending on what sort of jury you end up with.

Regardless of your practice area, it may make you feel good to believe that your client will receive equal justice under law no matter what the demographic elements are. But you’re a far better lawyer if you conclude that the analysis of those elements is part of your job.

Notes

[1] Sultan of the Spreadsheet (Excel is his Excalibur), Alpha (Male) of the Algorithm, Prince of the Polls! And, most importantly, Lord of Lucidity.
[2] In which case, what color is the sky on your world? Please tell us in the comments below.
[3] Why, you may ask? That’s a topic for another day.

Andy Mergendahl is a privacy officer at a large commercial bank. He's also been a solo practitioner and a judicial law clerk. He considers himself a foot soldier in the War on Legalese (also known as the War Without End). Andy enjoys collecting names for bands that do not (yet) exist, being a runner (but not the act of running so much), and the bourbon Old Fashioned at Eat Street Social in Minneapolis. Follow him on Twitter @andymergendahl